David Gardner, the solicitor who represented Dr Anchita Karmakar, shares his reflections on the case.
David Gardner, a solicitor skilled in representing health practitioners against the Professional Services Review, says a recent Federal Court judgement proves there is unfairness “baked into the legislation” governing the process.
His firm, Gardner Legal & Regulatory, handled Dr Anchita Karmakar’s high-profile case against the federal Health Minister. She was represented at trial by human rights barrister Julian Burnside QC and barristers Rachel De Luchi and Benedict Coyne.
Last week, Honourable Justice Logan RFD dismissed Dr Karmakar’s application, and the parties are now awaiting a costs hearing.
Justice Logan rejected her claim that she was afforded a lack of procedural fairness under the PSR and that her billing practices were judged against a subjective rather than objective standard.
However, Justice Logan also pointed to some policy considerations that might arise from the case, suggesting they were “for resolution in the political arena, not in the courts”.
Gardner shared his thoughts with TMR on the outcome of Karmakar V Minister for Health, and his advice for other health practitioners who might come under the gaze of the same system.
TMR: What are your final thoughts on the judgement handed down for Dr Karmakar’s case?
DG: Obviously, we were hoping that the application would be successful.
But I think, as I said to The Medical Republic quite a long time ago, a lot of the unfairness in the system is actually baked into the legislation.
It’s not necessarily an issue in terms of the individuals running [the PSR], it’s really the legislation itself that is grossly unfair. [Justice Logan] notes that there’s certain things that perhaps could be done better to assist practitioners, and that maybe there’s some policy issues that should be considered, but they’re not matters of the court – he’s correct about that.
I think what Anchita was really hoping to ventilate through these proceedings was to determine whether under the current law, what’s happening is legal and if the current law is being interpreted correctly.
As far as [the Federal Court] is concerned with Anchita’s case, it has been administered as per the law. And given that, I think the focus really needs to turn to a policy debate and trying to explain to members of parliament why this system is so unfair.
TMR: In the last few years, we’ve seen a number of cases which challenge the PSR process. Last year, Dr Hamid Norouzi was partially successful in his Federal Court challenge on the basis that the fees set by the determining authority were not reasonable. In your opinion, is it still worthwhile taking similar cases to court?
DG: I think it is. If you look at something like Hamid’s case, there were a few points of specific concern, and court obviously agreed with one of those.
Anchita’s case was brought a lot more broadly and if she were able to succeed, it would have had very wide ramifications across the process.
But to bring proceedings in the Federal Court is not an easy thing to deal with, and it’s not an easy thing to go through – even if you win.
You’ve got to be someone of pretty significant intestinal fortitude, but I think if people feel strongly about what they’ve gone through, they should seriously think about bringing a proceeding.
However, they also need to know that when the opponent is the government, it is much more likely that you will be unsuccessful than successful. Generally, most government decisions will be upheld. And if that wasn’t the case, then I think we’d have a very big problem on our hands.
But if people think they’ve been wronged, then they need to have a chat to a lawyer and then see whether they can get some sort of recourse.
TMR: What are your broader concerns for the justice that is afforded to individuals through the PSR process?
DG: There’s estimates that suggest there is $1.5 billion a year of incorrect billings under Medicare. The [PSR] nets between $20 and $30 million a year. So, it picks up about 1.5% of incorrectly billed items. As a first step, it’s just not doing the job.
Second, you have a very small number of people who are caused extreme pain by this system, when there are about 90,000 other practitioners that are not touched by it at all (only about 100 people a year go through the PSR).
It’s not doing its job well, but when it does, it crucifies and destroys the 100 or so people.
There is no other equivalent scheme to this in any other profession. There is no way that you would have a lawyer be beholden to their client for everything they’ve done for the last two years, in order to repay it. That just wouldn’t happen. This is a unique and unfair scheme. And I haven’t seen anyone ever explained why that is, and why doctors are so unique that they should be penalised in that way.
I am yet to represent any practitioner who has actually done anything deliberately wrong – it’s usually technical aspects relating to medical records, rather than some deliberate scheme which has defrauded the government of half a million dollars. And that is really what the [PSR] was set up to fix in the first place.
This system is broken. And it’s not broken because of the way it’s administered; it’s broken because of the way it’s set up in the first place. I’m very hopeful that in the next five years, this game will be abolished and replaced with something that’s far more equitable and fairer.
TMR: What would an alternative cost recovery system look like?
DG: I think a lighter-touch form of regulation would be far preferable. One where you know that if you’re billing incorrectly, you might get a handful of small fines or something like that. There might be also be further education.
One of the things that’s coming out from [these cases] is that practitioners will continue not know what their requirements for item numbers are. If they get it wrong, they could be facing a half-a-million-dollar bill.
If there’s a concern that they’re doing the wrong thing, they could get a few $100 fines and communication saying “We’ve had a look and we think you’re billing this item number wrong. So, here’s a fine. If you don’t agree, then you can challenge it.”
That system would spread the pain far wider and you wouldn’t have people being ordered to pay back half million dollars. It would also educate better.
A system like that may also result in a significant increase in revenue, which ultimately is what the Commonwealth wants. I should also say that it’s not my original idea, it’s one that has been said by others. There are probably other alternatives that are out there too.
But whatever it is, I don’t think it’s this.